ARTICLE...
CSA Victory Over 'Tracing Agents'
For two years now the CSA has been reporting on a new licensing regime for private investigators brought about by the Security Industry Act 2001 - and how, due to the definition of a private investigator within the Act, the CSA was concerned that this may include tracing agents, both in-house tracing agents within member firms as well as tracing companies.
The definition is 'any surveillance, inquiries or investigations carried out for the purpose of obtaining information about a particular person or about the activities or whereabouts of a particular person.
The cost implications of licensing are huge. If tracers are to be included in any licensing regime, as licences are for the individual rather than the company they represent, and competency training would be necessary before the licence was granted, the estimated cost per licence - including training - would be in excess of £1,000 per individual tracer.
In February's CSA Meeting, delegates were advised that - after close inspection of the Security Industry Act - tracing agents would not fall within the scope of licensing due to a number of exclusions listed within the Act itself. However, to ensure total clarity, a meeting was arranged between the CSA and the Security Industry Authority (SIA).
Thankfully, the CSA's earlier advice was shown to be correct.
The CSA was able to further clarify the position, as well as gain a better understanding of what the SIA hope to achieve with licensing and when the regime will come into force.
Tracers - An Overview
As mentioned above there are a number of exclusions within the Act, which permit certain activities to be carried out without requiring a licence. The vital exclusions which relate to our industry are:
Activities exclusively 'in-house', i.e. not in connection with any contract for services
Where no third party company has been contracted to trace. For example, 'in-house' tracing agents of Creditors attempting to trace absconded debtors for their own accounts. This will also include 'in-house' tracing agents of Debt Purchase companies tracing debtors for their own accounts.
Activities exclusively for the purpose of determining whether a particular person is credit worthy
We argued that one of the purposes of tracing absconded debtors was to determine whether they were in a position to repay their outstanding obligations. This was accepted by SIA, who also confirmed that Credit Checks are also excluded.
Activities involving registers or other records open to public inspection (even if you pay a fee to access the records e.g. electoral registers)
For example, using Bureaux and other publicly available data during the verification process.
And here is where the CSA nailed it...
Activities carried out with the knowledge or consent of the person about whom, or about whose activities or whereabouts, information is sought
For example, individuals who take out credit and fail to repay their obligation would have sufficient knowledge that their creditor would attempt to locate them to recover their cash. In the case of a signed agreement, the individual could be seen to have provided their consent under the same circumstances.
IMPORTANT NOTE
Not all tracers/private investigators will be exempt from licensing. If you are a tracer/PI and are carrying out activities which does not include any of the exclusions listed (or those exclusions defined in more detail within the Act www.opsi.gov.uk/acts/acts2001/ukpga_20010012_en_1) then you WILL require a licence.
The following example was provided by the SIA as a typical scenario for those individuals that will require a licence:
If a PI is contracted by an individual to locate a previous lover or a long lost family member, the person being looked for will have no knowledge that they are being traced nor would they have provided consent and therefore that PI will require a licence.
For those CSA Members that will require a licence
The SIA have confirmed that it is currently anticipated that licensing will be introduced in 2011 or 2012, but the definite time frame will be published in due course in their forthcoming Corporate and Business Plan 2009/10-2011/12. The SIA have assured the Association that comprehensive and timely guidance will be issued when licensing is introduced.
The Association recommends that once the guidance is released, if you are unsure as to whether you or your employees require a licence, you should refer to the Act or seek independent legal advice.
In the meantime, if you have any queries relating to the SIA and the licensing regime of Private Investigators, or you would like further information or more examples of non-licensable or licensable activities, please contact Claire Aynsley, Head of Membership & Compliance claire@csa-uk.com or 0191 271 8043.
Original article by Claire Aynsley, courtesy of CSA. For further information visit www.csa-uk.com/csa/
